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In re V.J.A.O.

Court of Appeals of Texas, Fifth District, Dallas

March 9, 2017


         On Appeal from the 303rd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-13-20429

          Before Justices Myers, Evans, and Richter [1]



         This is an appeal from the trial court's Order Adjudicating Parentage and Final Judgment (the Order) in a suit affecting the parent-child relationship. In six issues, the father of V.J.A.O. (Father) challenges the Order's provisions (1) setting Father's child support obligation, (2) awarding V.J.A.O.'s mother (Mother) the right to designate the child's primary residence and refusing to award Father a schedule allowing "50/50 possession" of V.J.A.O., and (3) awarding Mother attorney's fees. For the reasons discussed below, we modify the trial court's award of attorney's fees, but we otherwise affirm the trial court's Order.


         V.J.A.O. was born in France, where Mother resided and held citizenship. Father, a dual citizen of Australia and the United States, was working in France at the time. Father was present at V.J.A.O.'s birth, and-when V.J.A.O. was six weeks old-Mother and V.J.A.O. moved to the United States to live with Father. Mother and Father never married, but they purchased a home together and lived together for approximately two years. In 2013, Father moved out of the shared home. At the time of trial, Father had married someone else, and Mother and Father shared custody of V.J.A.O. under temporary orders.

         The trial court's Order, among other directives, named the parents joint managing conservators.[2] It gave Mother the exclusive right to designate V.J.A.O.'s primary residence within Dallas and contiguous Texas counties. Mother was also granted the right to make decisions concerning V.J.A.O.'s education. Father was granted a standard possession schedule that could be expanded according to family code provisions; he was also ordered to pay $5000 monthly for child support. Mother was awarded $30, 639.13 in attorney's fees.

         Father appeals.

         Child Support

         In his first two issues, Father challenges the Order's requirement that he pay $5000 monthly, an amount higher than standard guidelines would require, for support of V.J.A.O. We review a trial court's judgment on child support for an abuse of discretion. In re J.G.L., 295 S.W.3d 424, 426 (Tex. App.-Dallas 2009, no pet.).

         Factors Considered by the Trial Court in Making the Above-Guidelines Award

         In his first issue, Father contends the trial court misapplied the law in determining the amount of his child support obligation. Specifically, Father argues the trial court erroneously considered factors from an incorrect section of chapter 154 of the family code in setting that amount. The argument requires a brief summary of the Code's procedure for determining child support awards.

         The Texas Family Code employs different analyses in setting child support, depending on whether an obligor has net monthly resources above or below $8550.[3] When the obligor's monthly net resources are less than $8550, then the code sets a presumptive award based on a percentage of those resources and the number of children to be supported. Under this scheme, the presumptive award for an obligor with one child would be 20% of his net resources. That award is presumed to be reasonable, and an order conforming to these guidelines is presumed to be in the best interest of the child. Tex. Fam. Code Ann. § 154.122(a) (West 2014). However, the trial court may determine that application of the guidelines would be unjust or inappropriate in a particular case. Id. § 154.122(b). And the Code provides a list of seventeen factors that the trial court may consider when determining whether the best interest of the child justifies a variance from the presumptive award (the Below-Threshold Factors). Id. § 154.123(b).[4]

         In this case, though, the trial court found that Father's statutory net resources exceeded $8, 550 per month, and the parties do not dispute this finding. The statute governing calculation of support for an obligor who has more than $8, 550 in monthly net resources begins:

If the obligor's net resources exceed [$8550], the court shall presumptively apply the percentage guidelines to the portion of the obligor's net resources that does not exceed that amount. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child.

Id. § 154.126(a) (emphasis added). This section grants the trial court discretion to order additional amounts of support-over and above the presumptive award determined by the Code's guidelines-based on the income of the parties and the proven needs of the child.

The statute continues:
The proper calculation of a child support order that exceeds [$8550] requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child.

Id. § 154.126(b) (emphasis added). While subsection 154.126(a) grants authority for increasing the presumptive award, subsection (b) explains the mechanics of such a calculation: (1) determine the "proven needs of the child"; (2) subtract the presumptive award from the amount determined to be the proven needs of the child; (3) allocate, according to the circumstances of the parties, the amount each will pay of the remaining amount that is necessary to meet the needs of the child. The court has discretion in this allocation so long as no obligor is required to pay more than 100% of the proven needs of the child.

         Because Father's monthly net resources exceeded the threshold amount, a section 154.126 analysis was the proper way to determine his child support obligation. And as we have explained, a section 154.126 analysis yields an additional amount of child support determined by (1) the proven needs of the child and (2) the income of the parties, and an allocation of this additional amount based upon (3) the circumstances of the parties (together, the Above-Threshold Factors).

         In this first issue, Father argues that the trial court depended on the Below-Threshold Factors rather than the Above-Threshold Factors in determining his child support obligation. The issue is one of statutory construction, which we review de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008).

         Pursuant to the family code, Father requested, and the trial court filed, findings specific to the child support award. See Tex. Fam. Code Ann. § 154.130. As the statute requires, the court stated that application of the code's presumptive guidelines would be "unjust or inappropriate." See id. § 154.130(b). The court found further that Father's net monthly assets were no less than $35, 000, Mother's net resources were $9000, and the percentage applied to the resources would be 20%. See id. § 154.130(b)(1-3). Finally, as the statute mandates, the court listed its specific reasons for making an award that varies from the presumptive one determined by the guidelines. See id. § 154.130(b)(4). The court's specific reasons were:

(1) the age and needs of the child;
(2) the ability of [Father] and [Mother] to contribute to the child's needs;
(3) the financial resources available to [Father] for the support of the child;
(4) the amount of each parent's possession of and access to the child;
(5) the amount and type of [Father's] resources, his earnings, earning capacity, the kind and nature of his assets and the revenues and value available to him from his real, personal and financial assets;
(6) the child care expenses and needs incurred and necessitated to allow each party to retain and continue their gainful employment;
(7) the actual physical custody exercised by [Mother], her role as managing conservator;
(8) the other direct and indirect financial benefits [Father] has access to by virtue of his employment and investments;
(9) the provision by the parties to the child of health insurance and payment of the child's past uninsured medical expenses;
(10) the identified special, extraordinary bilingual educational and cultural expenses of the child;
(11) the positive cash flow enjoyed by [Father] by virtue of his real, personal property and assets as well as his businesses and investments; [and]
(12) the nationality, cultural and educational considerations related to this child's education and her best interests taking into consideration the circumstances of the parties.

         This list of twelve reasons was repeated in the court's Order and in its second set of findings, made in response to Father's post-trial request under the rules of civil procedure.

         Father equates the court's list of reasons with the Below-Threshold Factors.[5] He relies on Rodriguez v. Rodriguez, 860 S.W.2d 414 (Tex. 1993), which concluded that the below-threshold factors of the statute then in effect could apply only to adjust the amount of the presumptive award under the guidelines and could not not be used to perform an above-threshold analysis. Id. at 417. The statute in effect in that case permitted only the needs of the child to be used as justification for an award over and above the presumptive award, and the trial court had based its award on both the needs of the child and the net resources of the parents. Id. The latter factor- the net resources of the parents-was found in the statute only among other factors that could be used to adjust the presumptive award under the guidelines, i.e., Below-Threshold factors.

         Father acknowledges the statute has changed since Rodriguez, but he argues the same separation should be maintained in our case between use of Below-Threshold Factors and Above-Threshold Factors. We conclude that the change in the statute has so broadened the factors to be considered that there is little cause for concern regarding inappropriate considerations in determining the above-threshold child support award. In this case, we conclude that any factors used by the trial court in its determination are clearly subsumed within the three headings of the Above-Threshold Factors: the needs of the child, the resources of the parties, and the circumstances of the parties. Indeed, the reasons listed by the trial court for its award could be grouped under those headings in this manner:

Needs of the Child
(1) the age and needs of the ...

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